consider the nature of the paternal rule in its legal aspects. To
modern imagination the old Japanese laws may well seem intolerable;
but their administration was really less uncompromising than that of
our Western laws. Besides, although weighing heavily upon all
classes, from the highest to the lowest, the legal burden was
proportioned to the respective strength of the bearers; the
application of law being made less and less rigid as the social scale
descended. In theory at least, from the earliest times, the poor and
unfortunate had been considered as entitled to pity; and the duty of
showing them all possible mercy was insisted upon in the oldest
extant moral code of Japan,--the Laws of Shotoku Taishi. [345] But
the most striking example of such discrimination appears in the
Legacy of Iyeyasu, which represents the conception of justice in a
time when society had become much more developed, its institutions
more firmly fixed, and all its bonds tightened. This stern and wise
ruler, who declared that "the people are the foundation of the
Empire," commanded leniency in dealing with the humble. He ordained
that any lord, no matter what his rank, convicted of breaking laws
"to the injury of the people," should be punished by the confiscation
of his estates. Perhaps the humane spirit of the legislator is most
strongly shown in his enactments regarding crime, as, for example,
where he deals with the question of adultery--necessarily a crime of
the first magnitude in any society based on ancestor-worship. By the
50th article of the Legacy, the injured husband is confirmed in his
ancient right to kill,--but with this important provision, that
should he kill but one of the guilty parties, he must himself be held
as guilty as either of them. Should the offenders be brought up for
trial, Iyeyasu advises that, in the case of common people, particular
deliberation be given to the matter: he remarks upon the weakness of
human nature, and suggests that, among the young and simple-minded,
some momentary impulse of passion may lead to folly even when the
parties are not naturally depraved. But in the next article, [346]
No. 51, he orders that no mercy whatever be shown to men and women of
the upper classes when convicted of the same crime. "These," he
declares, "are expected to know better than to occasion disturbance
by violating existing regulations; and such persons, breaking the
laws by lewd trifling or illicit intercourse, shall at once be
punished without deliberation or consultation.* [*That is to say,
immediately put to death.] It is not the same in this case as in the
case of farmers, artizans, and traders." ... Throughout the entire
code, this tendency to tighten the bonds of law in the case of the
military classes, and to loosen them mercifully for the lower
classes, is equally visible. Iyeyasu strongly disapproved of
unnecessary punishments; and held that the frequency of punishments
was proof, not of the ill-conduct of subjects, but of the ill-conduct
of officials. The 91st article of his code puts the matter thus
plainly, even as regarded the Shogunate: "When punishments and
executions abound in the Empire, it is a proof that the military
ruler is without virtue and degenerate." He devised particular
enactments to protect the peasantry and the poor from the cruelty or
the rapacity of powerful lords. The great daimyo were strictly
forbidden, when making their obligatory journeys to Yedo, "to disturb
or harass the people at the post-houses," or suffer themselves "to be
puffed up with military pride." [347] The private, not less than the
public conduct of these great lords, was under Government
surveillance; and they were actually liable to punishment for
immorality! Concerning debauchery among them, the legislator remarked
that "even though this can hardly be pronounced insubordination," it
should be judged and punished according to the degree in which it
constitutes a bad example for the lower classes (Art. 88).* As to
veritable insubordination there was no pardon: the severity of the
law on this subject allowed of no exception or mitigation. The 53rd
section of the Legacy proves this to have been regarded as the
supreme crime: "The guilt of a vassal murdering his suzerain is in
principle the same as that of an arch-traitor to the Emperor. His
immediate companions, his relations,--all even to his most distant
connexions,--shall be cut off, hewn to atoms, root and fibre. The
guilt of a vassal only lifting his hand against his master, even
though he does not assassinate him, is the same." In strong contrast
to this grim ordinance is the spirit of all the regulations touching
the administration of law among the lower classes. Forgery,
incendiarism, and poisoning were indeed crimes justifying the penalty
of burning or crucifixion; but judges were instructed to act with as
much leniency as circumstances permitted in the case of ordinary
offences. "With regard to minute details affecting individuals of the
inferior classes," says the 73d article of the code, "learn the wide
benevolence of Koso of the Han [Chinese] dynasty." It was further
ordered that magistrates of the criminal and civil courts should be
chosen only from "a class of men who are upright and pure,
distinguished for charity and benevolence." All magistrates were kept
under close supervision, and their conduct regularly reported by
government spies.
[*Though even daimyo were liable to suffer for debauchery, Iyeyasu
did not believe in the expediency of attempting to suppress all vice
by law. There is a strangely modern ring in his remarks upon this
subject, in the 73d section of the Legacy: "Virtuous men have said,
both in poetry and in classic works, that houses of debauch, for
women of pleasure and for street-walkers, are the worm-eaten spots of
cities and towns. But these are necessary evils, and if they be
forcibly abolished, men of unrighteous principles will become like
ravelled thread, and there will be no end to daily punishments and
floggings." In many castle-towns, however, such houses were never
allowed--probably in view of the large military force, assembled in
such towns, which had to be maintained under iron discipline.]
[348] Another humane aspect of Tokugawa legislation is furnished by
its dictates in regard to the relations of the sexes. Although
concubinage was tolerated in the Samurai class, for reasons relating
to the continuance of the family-cult, Iyeyasu denounces the
indulgence of the privilege for merely selfish reasons: "Silly and
ignorant men neglect their true wives for the sake of a loved
mistress, and thus disturb the most important relation.... Men so far
sunk as this may always be known as Samurai without fidelity or
sincerity." Celibacy, condemned by public [349] opinion,--except in
the case of Buddhist priests,--was equally condemned by the code.
"One should not live alone after sixteen years of age," declares the
legislator; "all mankind recognize marriage as the first law of
nature." The childless man was obliged to adopt a son; and the 47th
article of the Legacy ordained that the family estate of a person
dying without male issue, and without having adopted a son, should be
"forfeited without any regard to his relatives or connexions." This
law, of course, was made in support of the ancestor-cult, the
continuance of which it was deemed the paramount duty of each man to
provide for; but the government regulations concerning adoption
enabled everybody to fulfil the legal requirement, without
difficulty.
Considering that this code which inculcated humanity, repressed moral
laxity, prohibited celibacy, and rigorously maintained the
family-cult, was drawn up in the time of the extirpation of the
Jesuit missions, the position assumed in regard to religious freedom
appears to us one of singular liberality. "High and low alike,"
proclaims the 31st article, "may follow their own inclinations with
respect to religious tenets which have obtained down to the present
time, except as regards the false and corrupt school [Roman
Catholicism]. Religious disputes have ever proved the bane and
misfortune of this Empire, and must be firmly, suppressed." ... But
the seeming liberality of this article must not be misinterpreted:
[350] the legislator who made so rigid an enactment in regard to the
religion of the family was not the man to proclaim that any Japanese
was free to abandon the faith of his race for an alien creed. One
must carefully read the entire Legacy in order to understand
Iyeyasu's real position,--which was simply this: that any man was
free to adopt any religion tolerated by the State, in addition to his
ancestor-cult. Iyeyasu was himself a member of the Jodo sect of
Buddhism, and a friend of Buddhism in general. But he was first of
all a Shintoist; and the third article of his code commands devotion
to the Kami as the first of duties:--"Keep your heart pure; and so
long as your body shall exist, be diligent in paying honour and
veneration to the Gods." That he placed the ancient cult above
Buddhism should be evident from the text of the 52d article of the
Legacy, in which he declares that no one should suffer himself to
neglect the national faith because of a belief in any other form of
religion. This text is of particular interest:
"My body, and the bodies of others, being born in the Empire of the
Gods, to accept unreservedly the teachings of other countries,--such
as Confucian, Buddhist, or Taoist doctrines,--and to apply one's
whole and undivided attention to them, would be, in short, to desert
one's own master, and transfer one's loyalty to another. Is not this
to forget the origin of one's being?"
[351] Of course the Shogun, professing to derive his authority from
the descendant of the elder gods, could not with consistency have
proclaimed the right of freedom to doubt those gods: his official
religious duty permitted of no compromise. But the interest attaching
to his opinions, as expressed in the Legacy, rests upon the fact that
the Legacy was not a public, but a strictly private document,
intended for the perusal and guidance of his successors only.
Altogether his religious position was much like that of the liberal
Japanese statesman of to-day,--respect for whatever is good in
Buddhism, qualified by the patriotic conviction that the first
religious duty is to the cult of the ancestors, the ancient creed of
the race.... Iyeyasu had preferences regarding Buddhism; but even in
this he showed no narrowness. Though he wrote in his Legacy, "Let my
posterity ever be of the honoured sect of Jodo," he greatly
reverenced the high-priest of the Tendai temple, Yeizan, who had been
one of his instructors, and obtained for him the highest court-office
possible for a Buddhist priest to obtain, as well as the headship of
the Tendai sect. Moreover the Shogun visited Yeizan to make there
official prayer for the prosperity of the country.
There is every reason to believe that within the territories of the
Shogunate proper, comprising the greater part of the Empire, the
administration of [352] ordinary criminal law was humane, and that
the infliction of punishment was made, in the case of the common
people, to depend largely upon circumstances. Needless severity was a
crime before the higher military law, which, in such cases, made no
distinctions of rank. Although the ring-leaders of a peasant-revolt,
for example, would be sentenced to death, the lord through whose
oppression the uprising was provoked, would be deprived of a part or
the whole of his estates, or degraded in rank, or perhaps even
sentenced to perform harakiri. Professor Wigmore, whose studies of
Japanese law first shed light upon the subject, has given us an
excellent review of the spirit of the ancient legal methods. He
points out that the administration of law was never made impersonal
in the modern sense; that unbending law did not, for the people at
least, exist in relation to minor offences. The Anglo-Saxon idea of
inflexible law is the idea of a justice impartial and pitiless as
fire: whoever breaks the law must suffer the consequence, just as
surely as the person who puts his hand into fire must experience
pain. But in the administration of the old Japanese law, everything
was taken into consideration: the condition of the offender, his
intelligence, his degree of education, his previous conduct, his
motives, suffering endured, provocation received, and so forth; and
final judgment was decided by moral common sense rather than by legal
enactment [353] or precedent. Friends and relatives were allowed to
make plea for the offender, and to help him in whatever honest way
they could. If a man were falsely accused, and proved innocent upon
trial, he would not only be consoled by kind words, but, would
probably receive substantial compensation; and it appears that judges
were accustomed, at the end of important trials, to reward good
conduct as well as to punish crime.* ... On the other hand,
litigation was officially discouraged. Everything possible was done
to prevent any cases from being taken into court, which could be
settled or compromised by communal arbitration; and the people were
taught to consider the court only as the last possible resort.
[*The following extracts from a sentence said to have been passed by
the famous judge, Ooka Tadasuke, at the close of a celebrated
criminal trial, are illustrative: "Musashiya Chobei and Goto
Hanshiro, these actions of yours are worthy of the highest praise: as
a remuneration I award ten silver ryo to each of you.... Tami, you,
for maintaining your brother, are to be commended: for this you are
to receive the amount of five kwammon. Ko, daughter of Chohachi, you
are obedient to your parents: in consideration of this, the sum of
five silver ryo is awarded to you."--(See Dening's Japan in Days of
Yore.) The good old custom of rewarding notable cases of filial
piety, courage, generosity, etc., though not now practised in the
courts, is still maintained by the local governments. The rewards are
small; but the public honour which they confer upon the recipient is
very great.]
The general character of the Tokugawa rule can be to some degree
inferred from the foregoing facts. It was in no sense a reign of
terror that compelled peace and encouraged industry for two hundred
and [354] fifty years. Though the national civilization was
restrained, pruned, clipped in a thousand ways, it was at the same
time cultivated, refined, and strengthened. The long peace
established throughout the Empire what had never before existed,--a
universal feeling of security. The individual was bound more than
ever by law and custom; but he was also protected: he could move
without anxiety to the length of his chains. Though coerced by his
fellows, they helped him to bear the coercion cheerfully: everybody
aided everybody else to fulfil the obligations and to support the
burdens of communal life. Conditions tended, therefore, toward the
general happiness as well as toward the general prosperity. There was
not, in those years, any struggle for existence,--not at least in our
modern meaning of the phrase. The requirements of life were easily
satisfied; every man had a master to provide for him or to protect
him; competition was repressed or discouraged; there was no need for
supreme effort of any sort,--no need for the straining of any
faculty. Moreover, there was little or nothing to strive after: for
the vast majority of the people, there were no prizes to win. Ranks
and incomes were fixed; occupations were hereditary; and the desire
to accumulate wealth must have been checked or numbed by those
regulations which limited the rich man's right to use his money as he
might please. Even a great lord--even the Shogun himself [355]
--could not do what he pleased. As for any common person,--farmer,
craftsman, or shopkeeper,--he could not build a house as he liked, or
furnish it as he liked, or procure for himself such articles of
luxury as his taste might incline him to buy. The richest heimin, who
attempted to indulge himself in any of these ways, would at once have
been forcibly reminded that he must not attempt to imitate the
habits, or to assume the privileges, of his betters. He could not
even order certain kinds of things to be made for him. The artizans
or artists who created objects of luxury, to gratify aesthetic taste,
were little disposed to accept commissions from people of low rank:
they worked for princes, or great lords, and could scarcely afford to
take the risk of displeasing their patrons. Every man's pleasures
were more or less regulated by his place in society, and to pass from
a lower into a higher rank was no easy matter. Extraordinary men were
sometimes able to do this, by attracting the favour of the great. But
many perils attended upon such distinction; and the wisest policy for
the heimin was to remain satisfied with his position, and try to find
as much happiness in life as the law allowed.
Personal ambition being thus restrained, and the cost of existence
reduced to a minimum much below our Western ideas of the necessary,
there were really established conditions highly favourable to certain
forms of culture, in despite of sumptuary [356] regulations. The
national mind was obliged to seek solace for the monotony of
existence, either in amusement or study. Tokugawa policy had left
imagination partly free in the directions of literature and art--the
cheaper art; and within those two directions repressed personality
found means to utter itself, and fancy became creative. There was a
certain amount of danger attendant upon even such intellectual
indulgences; and much was dared. Aesthetic taste, however, mostly
followed the line of least resistance. Observation concentrated
itself upon the interest of everyday life,--upon incidents which
might be watched from a window, or studied in a garden,--upon
familiar aspects of nature in various seasons,--upon trees, flowers,
birds, fishes, or reptiles,--upon insects and the ways of them,
--upon all kinds of small details, delicate trifles, amusing
curiosities. Then it was that the race-genius produced most of that
queer bric-a-brac which still forms the delight of Western
collectors. The painter, the ivory-carver, the decorator, were left
almost untroubled in their production of fairy-pictures, exquisite
grotesqueries, miracles of liliputian art in metal and enamel and
lacquer-of-gold. In all such small matters they could feel free; and
the results of that freedom are now treasured in the museums of
Europe and America. It is true that most of the arts (nearly all of
Chinese origin) were considerably developed before the Tokugawa era;
but it was then that they [357] began to assume those inexpensive
forms which placed aesthetic gratification within reach of the common
people. Sumptuary legislation or rule might yet apply to the use and
possession of costly production, but not to the enjoyment of form;
and the beautiful, whether shaped in paper or in ivory, in clay or
gold, is always a power for culture. It has been said that in a Greek
city of the fourth century before Christ, every household utensil,
even the most trifling object, was in respect of design an object of
art; and the same fact is true, though in another and a stranger way,
of all things in a Japanese home: even such articles of common use as
a bronze candlestick, a brass lamp, an iron kettle, a paper lantern,
a bamboo curtain, a wooden pillow, a wooden tray, will reveal to
educated eyes a sense of beauty and fitness entirely unknown to
Western cheap production. And it was especially during the Tokugawa
period that this sense of beauty began to inform everything in common
life. Then also was developed the art of illustration; then came into
existence those wonderful colour-prints (the most beautiful made in
any age or country) which are now so eagerly collected by wealthy
dilettanti. Literature also ceased, like art, to be the enjoyment of
the upper classes only: it developed a multitude of popular forms.
This was the age of popular fiction, of cheap books, of popular
drama, of storytelling for young and old.... We may certainly [358]
call the Tokugawa period the happiest in the long life of the nation.
The mere increase of population and of wealth would prove the fact,
irrespective of the general interest awakened in matters literary and
aesthetic. It was an age of popular enjoyment, also of general
culture and social refinement.
Customs spread downward from the top of society. During the Tokugawa
period, various diversions or accomplishments, formerly fashionable
in upper circles only, became common property. Three of these were of
a sort indicating a high degree of refinement: poetical contests,
tea-ceremonies, and the complex art of flower-arrangement. All were
introduced into Japanese society long before the Tokugawa
regime;--the fashion of poetical competitions must be as old as
Japanese authentic history. But it was under the Tokugawa Shogunate
that such amusements and accomplishments became national. Then the
tea-ceremonies were made a feature of female education throughout the
country. Their elaborate character could be explained only by the
help of many pictures; and it requires years of training and practice
to graduate in the art of them. Yet the whole of this art, as to
detail, signifies no more than the making and serving of a cup of
tea. However, it is a real art--a most exquisite art. The actual
making of the infusion is a matter of no consequence in itself: the
supremely important matter is that the act be performed in the most
perfect, [359] most polite, most graceful, most charming manner
possible. Everything done--from the kindling of the charcoal fire to
the presentation of the tea--must be done according to rules of
supreme etiquette: rules requiring natural grace as well as great
patience to fully master. Therefore a training in the tea-ceremonies
is still held to be a training in politeness, in self-control, in
delicacy,--a discipline in deportment.... Quite as elaborate is the
art of arranging flowers. There are many different schools; but the
object of each system is simply to display sprays of leaves and
flowers in the most beautiful manner possible, and according to the
irregular graces of Nature herself. This art also requires years to
learn; and the teaching of it has a moral as well as an aesthetic
value.
It was in this period also that etiquette was cultivated to its
uttermost,--that politeness became diffused throughout all ranks, not
merely as a fashion, but as an art. In all civilized societies of the
militant type politeness becomes a national characteristic at an
early period; and it must have been a common obligation among the
Japanese, as their archaic tongue bears witness, before the
historical epoch. Public enactments on the subject were made as early
as the seventh century by the founder of Japanese Buddhism, the
prince-regent, Shotoku Taishi. "Ministers and functionaries," he
proclaimed, [360] "should make decorous behaviour* their leading
principle; for their leading principle of the government of the
people consists in decorous behaviour. If the superiors do not behave
with decorum, the inferiors are disorderly: if inferiors are wanting
in proper behaviour, there must necessarily be offences. Therefore it
is that when lord and vassal behave with propriety, the distinctions
of rank are not confused when the people behave with propriety, the
government of the Commonwealth proceeds of itself." Something of the
same old Chinese teaching we find reechoed, a thousand years later,
in the Legacy of Iyeyasu: "The art of governing a country consists in
the manifestation of due deference on the part of a suzerain to his
vassals. Know that if you turn your back upon this, you will be
assassinated; and the Empire will be lost." We have already seen that
etiquette was rigidly enforced upon all classes by the military rule:
for at least ten centuries before Iyeyasu, the nation had been
disciplined in politeness, under the edge of the sword. But under the
Tokugawa Shogunate politeness became particularly a popular
characteristic,--a rule of conduct maintained by even the lowest
classes in their daily relations. Among the higher classes it became
the art of beauty in life. All the taste, the grace, the [361] nicety
which then informed artistic production in precious material, equally
informed every detail of speech and action. Courtesy was a moral and
aesthetic study, carried to such incomparable perfection that every
trace of the artificial disappeared. Grace and charm seemed to have
become habit,--inherent qualities of the human fibre,--and
doubtless, in the case of one sex at least, did so become.
[*Or, "ceremony": the Chinese term used signifying everything
relating to gentlemanly and upright conduct. The translation is Mr.
Aston's (see Vol. II, p, 130, of his translation of the Nihongi).]
For it has well been said that the most wonderful aesthetic products
of Japan are not its ivories, nor its bronzes, nor its porcelains,
nor its swords, nor any of its marvels in metal or lacquer--but its
women. Accepting as partly true the statement that woman everywhere
is what man has made her, we might say that this statement is more
true of the Japanese woman than of any other. Of course it required
thousands and thousands of years to make her; but the period of which
I am speaking beheld the work completed and perfected. Before this
ethical creation, criticism should hold its breath; for there is here
no single fault save the fault of a moral charm unsuited to any world
of selfishness and struggle. It is the moral artist that now commands
our praise,--the realizer of an ideal beyond Occidental reach. How
frequently has it been asserted that, as a moral being, the Japanese
woman does not seem to belong to the same race as the Japanese man!
Considering that heredity is limited by sex, there is reason in the
assertion: the Japanese woman is an ethically different [362] being
from the Japanese man. Perhaps no such type of woman will appear
again in this world for a hundred thousand years: the conditions of
industrial civilization will not admit of her existence. The type
could not have been created in any society shaped on modern lines,
nor in any society where the competitive struggle takes those unmoral
forms with which we have become too familiar. Only a society under
extraordinary regulation and regimentation,--a society in which all
self-assertion was repressed, and self-sacrifice made a universal
obligation,--a society in which personality was clipped like a hedge,
permitted to bud and bloom from within, never from without,--in
short, only a society founded upon ancestor-worship, could have
produced it. It has no more in common with the humanity of this
twentieth century of ours--perhaps very much less--than has the life
depicted upon old Greek vases. Its charm is the charm of a vanished
world--a charm strange, alluring, indescribable as the perfume of
some flower of which the species became extinct in our Occident
before the modern languages were born. Transplanted successfully it
cannot be: under a foreign sun its forms revert to something
altogether different, its colours fade, its perfume passes away. The
Japanese woman can be known only in her own country,--the Japanese
woman as prepared and perfected by the old-time education for that
strange society in which the charm [363] of her moral being,--her
delicacy, her supreme unselfishness, her child-like piety and trust,
her exquisite tactful perception of all ways and means to make
happiness about her,--can be comprehended and valued.